National Dance Institute - New Mexico, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 2016

364 NLRB No. 35 (N.L.R.B. 2016)

364 NLRB No. 35
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
National Dance Institute—New Mexico, Inc. and Di-
ana M. Orozco-Garrett. Case 28–CA–157050
June 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On February 10, 2016, Administrative Law Judge El-
eanor Laws issued the attached decision. The Charging
Party filed exceptions with supporting argument. The
Respondent filed an answering brief, and the Charging
Party filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. June 23, 2016

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, some of the Charging
Party’s exceptions imply that the judge’s rulings, findings, and conclu-
sions demonstrate bias and prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the Charg-
ing Party’s contentions are without merit.
2 In adopting the judge’s dismissal of allegations that the Respond-
ent violated Sec. 8(a)(4) and Sec. 8(a)(1) by failing to assign classes to
the Charging Party and by discharging her, we find
it unnecessary to pass on whether the General Counsel carried his ini-
tial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), because we find
that the Respondent met its rebuttal burden of proving it would have
terminated the Charging Party even if she had not filed a charge with
the Board or engaged in any protected concerted activity.
Additionally, we adopt the judge’s dismissal of the allegation that
the “Expectations for Employee Conduct” rule violated Sec. 8(a)(1), in
the absence of argument on exceptions addressing the specific language
alleged to be unlawful. Further, in the absence of exceptions, we adopt
the judge’s dismissal of allegations that the Respondent’s July 31 email
to the Charging Party promulgated an unlawful rule and constituted an
unlawful threat.
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Cristobal Munoz, Esq. and Chris Doyle, Esq., for the General
Counsel.
Patricia Salazar Ives, Esq. (Cuddy & McCarthy, LLP), for the
Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Santa Fe, New Mexico, on December 1–4, 2015. Diana
M. Orozco-Garrett (the Charging Party) filed the original
charge on July 30, 2015, and an amended charge on September
11, 2015.1 The General Counsel issued the complaint on Octo-
ber 9. National Dance Institute—New Mexico, Inc. (the Re-
spondent or NDI) filed a timely answer denying all material
allegations.
The complaint alleges the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by prom-
ulgating and/or maintaining an overly broad rules regarding
employee conduct and threatening employees with reprisal.
The complaint further alleges the Respondent violated Section
8(a)(4) and (1) of the Act by failing to assign dance classes to
the Charging Party and terminating her employment.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
National Dance Institute—New Mexico, Inc., a nonprofit
corporation with an office and place of business in Santa Fe,
New Mexico, provides dance classes to students in New Mexi-
co’s schools. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7).

1 All dates are in 2015 unless otherwise indicated. The Respondent
filed a motion to correct the transcript, which the General Counsel
opposed. Many of the corrections are simple typos. With regard to any
material changes in testimony, I have relied on the official transcript
and not the Respondent’s proposed amended transcript.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. STATEMENT OF FACTS
A. Background and the Respondent’s Operations
NDI’s headquarters are in Santa Fe, and it also has offices in
Albuquerque. It serves students across the State of New Mexi-
co.
NDI has an outreach program in public elementary schools,
targeting schools with families living in poverty. It runs for 30
weeks, and consists of NDI sending a teacher and a pianist into
a public elementary school once a week for 30 weeks. Classes
are 50 minutes long and have specific curriculum. Students in
this program can audition for the Super Wonderful Advance
Team (SWAT), which meets on Friday afternoon or Saturday
morning for approximately 30 weeks during the school year.
All students in the outreach program and on the SWAT team
participate in one of two year-end performances at NDI’s Santa
Fe facility, referred to as the dance barns. NDI also has after
school, weekend, and summer programs.
NDI’s purpose is broader than simply teaching dance. NDI
strives to help children develop self-discipline, a standard of
excellence, and a belief in themselves that will carry into all
aspects of their lives. (Tr. 203–204; R. Exh. TT.)2 Students are
taught to adhere to the “core four”: work hard, do your personal
best, never give up, and choose a healthy lifestyle. (Tr. 41.)
NDI’s tagline is “teaching children excellence.” (Tr. 203.)
NDI's core values are a belief in children, social responsibility,
excellence, sustainability, and financial integrity. (Tr. 11.)
At all relevant times, Russell Baker has been NDI’s execu-
tive director. He reports to NDI’s Board of Directors, chaired
by Diane Doniger. Maria Wolfe is NDI’s director of business
and administration, with oversight of NDI’s human resources
function. Liz Salganek is NDI’s artistic director, with respon-
sibilities overseeing all of the artistic programs around the
State. Emily Lowman is the Santa Fe outreach artistic director,
responsible for the year-end performance. Melissa Briggs di-
rected the Santa Fe Summer Institute during the summer of
2015. Alison Montoya is the Santa Fe program producer. In
this capacity, she administrates the program in Santa Fe and
assists with the year-end production. She conducts three annual
meetings at each of the schools that participate in the program:
a start-up meeting at the beginning of the school year, an event-
prep meeting before the performance, and a wrap-up meeting at
the end of the school year.
NDI employs part-time and full-time teachers. The full-time
teachers have duties outside the classroom. During the relevant
time period there were approximately five full-time teachers
and three part-time teachers.
NDI teachers are expected to serve as role models for the
constituents they serve. They must participate in a two-week
teaching excellence workshop before they start working with
students. (Tr. 201–202.) Teachers are expected to exhibit

2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for the Respondent’s exhibit; “GC Exh.” for the Gen-
eral Counsel’s exhibit; and “GC Br.” for the General Counsel’s brief.
Although I have included several citations to the record to highlight
particular testimony or exhibits, I emphasize that my findings and con-
clusions are based not solely on the evidence specifically cited but
rather are based my review and consideration of the entire record.
NDI’s core competencies of an excellent NDI New Mexico
instructor. These competencies are broken down into the fol-
lowing categories: achieving the mission, classroom manage-
ment, teaching techniques, student-teacher connection, curricu-
lum, modeling, choreography, seeing students, and communica-
tion. (R. Exh. B.) Instructors are trained on the competencies
when they start at NDI and are also trained annually. (Tr. 201–
202.) Instructors are also provided with NDI’s teaching excel-
lence manual, which sets forth expectations of NDI teachers.
The “core emphasis is on excellence, precision, teamwork, and
total physical commitment.” If a teacher becomes frustrated
and yells at students or otherwise does not model excellence,
the teacher is instructed to apologize. (R. Exh. C.) Teachers
were also provided with the NDI New Mexico Child Safety and
Discipline policy for the 2014–2015 school year. (R. Exh. D.)
B. The Charging Party’s Probation and Previous Charges
Orozco-Garrett served as a part-time dance instructor for 14
years. She had taught at Sweeney Elementary School during
the 2013-2014 school year. At the start-up meeting at Sweeney
on September 9, 2014, the principal complained that Orozco-
Garrett had been verbally abusive and disrespectful to her in
front of her staff, and had been disrespectful to the teachers.
(Tr. 410–411; R. Exhs. NN, OO.) The principal and teachers
discussed not having NDI at Sweeney because of Orozco-
Garrett’s behavior. Montoya and Lowman had attended the
meeting, and Montoya sent Lowman and Salganek an email
describing what the principal had told them.3 (R. Exh. EEE; Tr.
664.)
On September 10, 2014, Baker issued Orozco-Garrett a letter
of warning and placed her on probation.4 Orozco-Garrett filed
a charge with the National Labor Relations Board (the Board or
NLRB) on September 17, 2014, alleging that the Respondent
had prohibited employees from discussing their terms and con-
ditions of employment. (GC Exh. 34.) Orozco-Garrett filed
another charge with the Board on November 25, 2014, alleging
her probation was motivated by discrimination for her protected
activities. She also alleged the Respondent had prohibited em-
ployees from discussing the terms and conditions of their em-
ployment, maintained overly broad work rules, threatened em-
ployees, and created the impression that employees were under
surveillance. (GC Exh. 35.)
The Regional Director for Region 28 issued an amended
complaint on March 10, 2015, alleging the Respondent violated

3 Orozco-Garrett had previously been counseled about behavior
similar to what is at issue in the instant complaint. On July 23, 2010, in
response to Orozco-Garrett’s request for a larger teaching schedule,
Baker stated he would consider increasing her workload if her perfor-
mance and attitude were improved. Specifically, Baker instructed
Orozco-Garrett to build a positive collaboration between herself and
her supervisor, increase communication and follow-up with her manag-
ers by meeting deadlines and attending meetings on time, and build
strong and positive relationships with NDI’s constituents. (R Exh.
UU.)
4 Orozco-Garrett filed a charge of discrimination with the New
Mexico Department of Workforce Solutions, Human Rights Bureau
and the Equal Employment Opportunity Commission, alleging her
probation was unlawful discrimination based on her national origin. (R.
Exh. VV.)
NATIONAL DANCE INSTITUTE—NEW MEXICO, INC. 3
the Act as alleged in the charges. (GC Exh. 36.) The complaint
was settled, with the Respondent agreeing to pay Orozco-Garret
$213.00 backpay for auditions she was not permitted to attend,
revise its Standards of Professional Conduct policy, and delete
language in Orozco-Garrett’s probation letter that could be
construed as prohibiting protected activity. (Tr. 219–221; R.
Exh. FFF.) The probationary period and terms otherwise re-
mained the same. (R. Exhs. H, CC, DD.)
Salganek emailed Orozco-Garrett the revised probation letter
on March 24, 2015, and offered to discuss it with her. Orozco-
Garrett responded, setting forth numerous conditions precedent
to discussing the matter with Salganek, and pointing out the
legal deficiencies she perceived with the document. (R. Exh.
EE.) Orozco-Garrett refused to sign her letter of probation.
(Tr. 411, 613.)
The Respondent distributed a notice pursuant to the settle-
ment agreement on March 27, 2015. (R. Exh. G.)
C. Events in February and March 2015
Lowman conducts monthly team meetings for the Santa Fe
program. The meetings include the musicians and teachers in
the outreach program. (Tr. 387, 454–455.) In February 2015,
Lowman sent Orozco-Garrett an email asking her to be on time
for future team meetings. Orozco-Garrett had been late for a
February 11 meeting because she was teaching a class right
before the meeting and stopped to pick up lunch.5 (GC Exhs. 4,
38.) Other employees have been late to meetings, and Lowman
has spoken to them about it. (Tr. 285–287; 461–462.)
During the meeting, Lowman discussed a change to some
choreography that would affect the teachers, and said, “Please
don't be mad. Don't make a voodoo doll out of me.” Salganek
heard Orozco-Garret say under her breath, “There's already a
voodoo doll of you.” Salganek told Orozco-Garrett she would
consider future similar comments to be insubordinate. Orozco-
Garrett responded, “Of course you would.”6 (Tr. 291–292; GC
Exh. 4.) Orozco-Garrett received no discipline for being late
for the meeting or for making the voodoo doll comment. (Tr.
295–296.)
In February and March, Orozco-Garrett made suggestions
about the artistic aspects of the performance. Among other
suggestions, she wanted Hispanic authors to be part of the pro-
gram because the students NDI serves are predominantly His-
panic.7 (GC Exhs. 39–41; R. Exhs. MM, PP, WW; Tr. 324,
463–472.)
On March 13 and 15, Baker sent emails notifying employees
the Respondent had rescinded the Standards of Professional
Conduct policy and replaced it with the Employee Conduct
policy. Baker attached the new policy and instructed the em-

5 Orozco-Garrett did not attend the March 2015 meeting due to a
medical condition. Lowman met with her separately to go over the
material that was covered in the meeting.
6 Right after the meeting, Orozco-Garrett posted the following
comment on her Facebook page” “Voo doo hoo doo, you’re gonna be
doo doo!” (R. Exh. GG.) She also later posted a picture of a voo doo
doll with the caption, “Respect the voodoo doll bitches.” (R. Exh. HH.)
7 Orozco-Garrett pointed out to Salganek that her suggestion about
Hispanic authors was not included in the minutes of the February 11
meeting. (GC Exh. 41.)
ployees to review it.8 (GC Exh. 8; R. Exh. F.)
D. The Year-End Performance
As noted above, the year-end performances for the Santa Fe
outreach program take place at the dance barns. The facility
comprising the dance barns has six dance studios, two of which
convert into a performing arts theater. The year-end perfor-
mances include students from third–ninth grades, as well as
about a group of about 20 kindergartners, for a total of about
500 participants per performance. There are two sets of perfor-
mances during consecutive weeks, each lasting three days.
Rehearsals take place prior to the performances. Initially,
each school is bused to the dance barns separately so the stu-
dents can get acclimated to the environment. The rehearsals
occur in stages: first with just one class, then as a school, and
then with all participants. Students who are not performing at a
given time wait in holding areas. Generally, when the schools
rehearse together, it is the first time students from different
schools interact. The schoolteacher for each participating class
comes to the rehearsals and the performances. In addition, each
school is assigned a “runner” who is responsible for helping
students get organized in the holding area, lining the students
up for their dances, accompanying them to the stage, waiting
for them while they're on the stage, and then they accompany-
ing them back to the holding area. The runners and classroom
teachers supervise the students.9 At any given time, between
roughly 40 and 100 kids are in a holding area. Educational
assistants assigned to disabled students through the public
schools accompany their students to the rehearsals and perfor-
mances.10 Other volunteers also help facilitate the rehearsals
and performances.
For the 2014–2015 school year, the dress rehearsals occurred
on Wednesday, and the performances were Thursday (two
morning and one evening performances), Friday (two evening
performances), and Saturday (one afternoon and one evening
performance).
Some parts of the performance include all students, while
other parts involve only some of the students. Near the begin-
ning of the performance, all students participate in “runs and
jumps.” This involves two lines of students who run onto the
stage one at a time, do a jump, and run off the stage. During
the May 2015 performance, Orozco-Garrett was stationed up-
stage right to help direct traffic during runs and jumps, and to
ensure the two lines did not run into each other. (Tr. 476–479.)
Pamela Ladas, a part-time instructor, was the NDI dance
teacher at Gonzales Elementary School. During the second
week of performances, an incident between an NDI instructor
and an educational assistant (EA) named Laura Robledo, which
allegedly occurred on May 14, was reported to Salganek.
Robledo was assisting a visually impaired student from Gonza-

8 Debbie Baciocco, a human resources specialist, sent the March 13
email on Baker’s behalf. According to Wolfe, the NLRB attorney
working with NDI on settling the previous complaint approved the
language in this version. (Tr. 704.)
9 Teachers receive a stipend from NDI for their time participating in
the event.
10 Disabled students are integrated into the program, and they are
not labeled or otherwise identified to the NDI staff as disabled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
les. Robledo and Ladas approached Salganek, and Robledo
told Salganek that an NDI staff member with short dark hair
had grabbed her arm so hard it left a bruise, and the staff mem-
ber had handled her student in a rough manner.11 Robledo
identified Orozco-Garrett as the NDI instructor. (Tr. 326–327.)
Salganek informed Orozco-Garrett about the incident, and
Orozco-Garrett responded that she never touched anyone.12
(Tr. 329, 480–481.) Orozco-Garrett approached Robledo the
evening on May 14 and told her she had heard there had been
an incident with a child. According to Orozco-Garrett, Robledo
said the incident had nothing to do with the child. (Tr. 498–
499.)
Salganek sent an email to Baker and Wolfe at 5:15 p.m. on
May 15, reporting her conversations with Robledo and Orozco-
Garrett regarding the incident. (R. Exh. I.) Baker responded to
Salganek’s email, asking if there was a photo of the bruise and
inquiring as to whether any other adults were present. Salganek
informed Baker that Ladas was present when Robledo de-
scribed the incident and identified Orozco-Garrett. (R. Exh. J.)
On May 16, Wolfe and Salganek met with Robledo, who re-
iterated what she had told Salganek. Robledo said that Orozco-
Garrett had apologized to her. She further expressed that she
did not want to get anyone in trouble, but wanted to make sure
such an incident did not recur. Wolfe took a picture of the
bruise and forwarded it, along with her notes from the meeting,
to Baker. (R. Exh. K.)
Another incident occurred during the May 14 performance.
Instructor Gemetria St. Clair reported to Lowman that she had
moved Ms. Lussiez, a teacher from Gonzales, from one spot to
another and thought it had disturbed the teacher. St. Clair apol-
ogized to the teacher and reported it to Lowman because she
felt she had done something wrong and wanted her to know.
Lowman reported the incident to Baker and Salganek. (Tr.
408.)
The Gonzales Elementary wrap-up meeting occurred on May
20. Montoya attended on behalf of NDI.13 When Montoya
arrived at the meeting, she saw the principal was there, and she
figured there must be a problem because NDI had been at Gon-
zales Elementary for 16 or 17 years, and the principal did not
usually attend the meetings. (Tr. 671.) The complaints about
St. Clair and Orozco-Garrett were discussed at the meeting, and
the principal stated such incidents could not reoccur. The prin-
cipal appeared upset to Montoya, and told her he should not
have to worry about people coming back from NDI bruised.
Various other complaints about the length of the program and
its toll on the teachers were also discussed. (R. Exh. M; Tr.
673–674.) After Montoya left the meeting, she informed
Salganek about it. (Tr. 674.) Salganek prepared an incident
report on May 20, which Baker signed on May 28. (R. Exh. N.)
Baker investigated the incidents involving Orozco-Garrett

11 Robledo had initially reported the incident to Ladas, who found
Salganek. (Tr. 327.)
12 She remembered yelling, over the music, that the line needed to
keep moving during the first run-through of runs and jumps. (Tr. 487–
489.)
13 As per her usual practice, Montoya took the minutes at the meet-
ing. (Tr. 663, 670.)
and St. Clair. (R. Exh. A.)14 He left a phone message with
Orozco-Garrett requesting to meet to discuss the incident.
Orozco-Garrett responded in writing May 27, asking what “in-
cident” Baker wanted to discuss. Baker responded that it was
the interaction between Orozco-Garrett and the EA from Gon-
zales, and asked when she was available to meet. (R. Exh. P.)
Orozco-Garrett responded on May 28, expressing surprise at
the request because she had spoken to both EAs and the chil-
dren, and was told no such accusation was made. She ex-
pressed her belief that she should be commended for avoiding a
near catastrophe during the runs and jumps number resulting
from Lowman’s negligence by failing to properly instruct the
blind dancers and their aids. She also criticized Ladas’ judg-
ment in her placement of the visually impaired students. Oroz-
co-Garrett said she would meet with Baker only after being
fully informed in specific detail regarding the nature of the
allegations, who made them, when and where the alleged inci-
dent took place, the names and contact information of anyone
with personal knowledge, and the evidence to support the
claim. Orozco-Garrett also stated that if Wolfe was to be pre-
sent, she would bring her husband, a retired civil rights attor-
ney, to the meeting. (GC Exh. 11.)
Baker sent Orozco-Garrett an email on May 29, informing
her that the purpose of the meeting he requested was to get her
perspective on the interaction with the EA from Gonzales Ele-
mentary. (R. Exh. Q.) Orozco-Garrett responded on June 3,
with an email similar to her May 28 correspondence. (GC Exh.
12.)
On June 8, Baker sent Orozco-Garrett and email stating that
NDI had received a complaint on May 15 from EA Laura
Robledo about the way Orozco-Garrett handled her backstage
during the May 14 performance. He told her the substance of
the allegations, and stated that representatives from Gonzales
had asked that NDI take measures to ensure it did not happen
again. Baker again asked to meet with Orozco-Garrett, and
gave her some proposed dates and times. (GC Exh. 12a.)
Orozco-Garrett responded later that day, stating that Baker’s
letter was not responsive to her previous request. She denied
that she had engaged in the conduct ascribed to her by Robledo,
requested information about how the complaint was made and
conveyed up the chain at NDI, and reiterated that Robledo had
told her she had made no allegations against her. She also re-
quested specific information about the wrap-up meeting at
Gonzales. (GC Exh. 13.)
Baker again requested to meet with Orozco-Garret in an
email dated June 16. Orozco-Garrett responded the following
day, stating that she was awaiting an evaluation of the request
from her attorney before responding. (R. Exh. S.)
Baker sent another email to Orozco-Garrett on Tuesday, June
23, stating he had provided her with the information he had
regarding the allegation, and requesting, again, to meet with
her. He stated that after they met, he would gather more infor-
mation and determine if the complaint was valid. He asked her
to provide a date and time to meet, and stated that if they could
not meet by Thursday, he would consider her May 28 and June

14 The investigations took several weeks due to summer schedules.
(Tr. 496–497; R. Exh. A.)
NATIONAL DANCE INSTITUTE—NEW MEXICO, INC. 5
22 emails and attachments to be her response. (GC Exh. 13a.)
On June 29, Orozco-Garrett sent Baker a letter, broken down
into enumerated sections expressing her belief that she had
been subjected to “[d]isparate treatment, violation of due pro-
cess, and unconscionable course of dealing.” She summarized
their previous correspondence and expressed that Baker had not
been responsive to her previous requests. She explained that
she could not have grabbed anyone because she had an injured
left elbow, and during runs and jumps she held out her left arm
and pointed with her right hand. Orozco-Garrett again reiterat-
ed that Robledo made no allegations against her. She told
Baker he was acting in bad faith and stated that she would file
complaints with the EEOC and the NLRB if the matter was not
closed and any reference to it removed from her personnel file
by July 10. (GC Exh. 14; Tr. 481–483.)
Baker responded on July 9, stating he was disappointed
Orozco-Garrett was unwilling to meet with him so that he could
hear her view of what had occurred on May 14. He informed
her that the he would rely on her emails as her response to the
allegation, and determine what if any action should be taken.
Baker also informed Orozco-Garrett that the matter would only
become part of her personnel file if action was taken against
her. (R. Exh. T.) Orozco-Garrett emailed Baker on July 13, to
inform him that she had never refused to meet with him about
the Robledo incident. (GC Exh. 16.)
After his attempts to meet with Orozco-Garrett, Baker began
scheduling meetings with others. He spoke with the principal
and in-school school coordinator from Gonzales Elementary
School. He also interviewed Robledo, Ladas, Montoya, and
Salganek, and prepared a report documenting his conversations
with these individuals.15 Baker concluded that Robledo had not
fabricated the incident. He noted Robledo’s report that Orozco-
Garrett had apologized to her, and he found this impossible to
reconcile with Orozco-Garrett’s denial that anything had oc-
curred. Baker deduced from the nature of Orozco-Garrett’s
written responses to him that she was avoiding discussing the
incident by attempting to cloud and confuse the issues. Baker
concluded that Orozco-Garrett had violated the terms of her
probation. (R. Exh. A.)
Baker also investigated the St. Clair incident. He interviewed
the principal and in-school coordinator from Gonzales, as well
as Lussiez. He also spoke with St. Clair, Salganek, Wolfe, and
Montoya. St. Clair was very apologetic about her behavior to
Salganek and Baker. She had ideas on how to improve in the
future and how everyone could work better backstage to avoid
such an incident. (Tr. 188; R. Exh. A.)
E. The Summer Programs
Orozco-Garrett taught for NDI’s summer program at the
dance barns during the last 3weeks of June. (Tr. 153, 497–498.)
She also taught at a 1-week program in Artesia, New Mexico in
July. (Tr. 143–144.)
F. The Kitchen Sink Email and Reports about Profanity
On June 18, at 8:25 a.m., Lowman sent an email to the NDI
staff stating she had just spent 20 minutes cleaning the kitchen

15 At Salganek’s request, Ladas also forwarded an email describing
what she observed. (R. Exh. O.)
sink and it “was probably the grossest thing I have ever done . .
. not exaggerating.” She described molding lemon peels, some
crickets, and dirty dishes covered in poured-out coffee. She
asked the staff to clean up after themselves “so that we do not
create a new habitat for creepy crawlies in our sink again.” She
ended with a thank you, followed by a smiley face. (R. Exh.
II.)
That same morning, in the hallway of the dance barns, Oroz-
co-Garrett approached Rachel Carpenter, NDI’s north program
producer, and started talking about how pitiful Lowman’s email
was. Orozco-Garrett told Carpenter that Lowman had nothing
better to do but complain about the sink, and said she’d cleaned
up more shit than Lowman ever had. According to Carpenter,
Orozco-Garrett repeatedly used the F-word. Carpenter tried to
use her body language to convey she was not interested in talk-
ing with Orozco-Garrett, and eventually told her she needed to
get back to work. (Tr. 681–682.) There were not parents or
students nearby during this conversation. (Tr. 507, 692.)
Later that day, Carpenter and Briggs were directing children
to their studios, and Orozco-Garrett approached. There were
parents and children in the vicinity, and Orozco-Garrett began
swearing. (Tr. 683–684; GC Exh. 18.) That same afternoon,
NDI Residency Director Hannah Foss and Carpenter were set-
ting up T-shirts to sell at a table in the dance barns. Orozco-
Garrett came in and helped set up the T-shirts. She started
talking about Lowman’s email again, using swear words, and
saying she was going to buy cockroaches to put in the sink.
Class was just ending and there were parents and volunteers
around. (Tr. 685–686; GC Exh. 18.) That afternoon, Carpenter
approached Lowman to tell her what had transpired. Lowman
directed her to Salganek. (Tr. 689.)
On June 19, Carpenter reported to Salganek the incidents
that had occurred the prior day. (Tr. 305.) Carpenter reported
that she felt Orozco-Garrett was belittling, bullying, and mock-
ing Lowman. (Tr. 311; R. Exh. JJ.)
On July 13, Salganek sent Orozco-Garrett an email stating
that she and Carpenter had met regarding some comments
Orozco-Garrett had made to Carpenter. Salganek informed
Orozco-Garrett that her comments had made Carpenter feel
uncomfortable, and Carpenter thought they were personally
demeaning to Lowman. Salganek reminded Orozco-Garrett
about their previous conversation about the voodoo doll com-
ment. Salganek requested to meet with Orozco-Garrett before
deciding whether her comments about Lowman were inappro-
priate. (GC Exh. 15.)
Orozco-Garrett responded the same day, stating that
Salganek’s letter violated the settlement agreement in her pre-
vious case. She expressed her belief that she had the right to
discuss supervisory personnel, and noted that there have been
cases holding that calling a supervisor an “asshole” was pro-
tected. She concluded by stating, “You clearly do not know the
scope of protected employee activity under the NLRA, just as
you do not understand the concept of insubordination” and
added that she was forwarding Salganek’s email to the NLRB.
(GC Exh. 17.)
At Salganek’s request, on July 14, Carpenter and Briggs sent
Salganek emails regarding their interactions with Orozco-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Garrett on June 18.16 (R. Exh. KK; GC Exh. 18; Tr. 310.)
On July 31, Salganek sent Orozco-Garrett another email reit-
erating her belief that the comments Orozco-Garrett had made
about Lowman were intended to belittle and humiliate her.
Salganek informed Orozco-Garrett that she believed the com-
ments were insubordinate and in violation of NDI’s standards
of professional conduct. She also expressed her belief that
Orozco-Garrett’s July 13 response was insubordinate because
she was attempting to investigate a complaint and she was met
with defiance and disrespect. Salganek reminded Orozco-
Garrett of the terms of her probation, and informed her she was
copying Baker and they would discuss possible discipline. (R
Exh. U.)
Orozco-Garret responded on August 3, with Baker cc’d, stat-
ing she was forwarding Salganek’s July 31 email to the NLRB,
and expressing her belief that it violated the settlement agree-
ment and constituted a threat based on her protected concerted
activity. Orozco-Garrett again broke her response into sections.
In Section I, she expressed her displeasure with how the
Sweeney matter that led to her probationary status had been
handled. In Section II, she denied using foul language within
earshot of students and stated she had not been informed of
what she allegedly had said. In Section III, Orozco-Garrett
pointed out that others had made comments about Lowman,
expressed her belief that Lowman perpetrates negative talk, and
stated she thought there was a different standard for Hispanics.
In Section IV, Orozco Garrett opined that Lowman’s character-
ization of her behavior as insubordinate was an illegal charac-
terization of her employee rights, and reminded Lowman that
during settlement negotiations she was required to remove lan-
guage in a disciplinary letter requiring her to be respectful in
her interactions with management. In Section V, Orozco-
Garrett said Salganek had tried to make it seem like she had
called Lowman and “asshole.” Orozco-Garrett clarified that
she “was simply making you aware of the principle that civility
in the workplace is dead before the NLRB.” She cited to a
Board case, as follows:
In Plaza Auto Center, [I]nc., 360 NLRB No. 117 (2014), the
NLRB Board ruled that an employer violated the NLRA
when it terminated an employee for cursing at his employer in
a meeting about his pay. The employee called the owner, in a
meeting with his manager, a “fucking crook” and an “ass-
hole”; told the manager that the owner of the company was
“stupid” and that nobody liked him; and shoved his chair and
said that if the company fired him, they would regret it. They
did.
(Emphasis in original.) In Section VI, Orozco-Garrett faulted
Salganek for relying on a portion of the employee handbook
that had yet to be distributed and opining that even if the lan-
guage for the revised employee handbook had been approved
by the Board, it was too broad and vague to be enforceable.
Finally, in Section VII Orozco-Garrett stated that, in her view,
she was no longer on probation because her probationary period
ended on the last day of school in May. Orozco-Garrett con-

16 Briggs asked Salganek not to mention her by name if possible
when Salganek discussed the incident with Orozco-Garrett.
cluded by stating that she would not meet with Salganek until
she was advised of the factual content of the allegations against
her. (R. Exh. V.)
On August 5, Wolfe informed management not to firm up
any schedules that included Orozco-Garrett or St. Clair as in-
structors for the upcoming school year until Baker finished his
investigations. (R. Exh. W.)
On August 25, Baker issued St. Clair a letter about her be-
havior that was also sent to her personnel file. (Tr. 188–189; R.
Exh. Y.)
Also on August 25, Orozco-Garrett sent a text stating, “The
grossest thing she’s ever done, ‘not exaggerating’ Ok, I’ve
cleaned up barf, urine, kid poop . . . all at NDI. I was thinking
of sending a response that the crickets were mine! They must
have escaped! Poor crickets!”17 (R. Exh. ZZ.)
Orozco-Garrett emailed Lowman on August 25 asking about
her schedule for the school year. She said she expected a se-
cond class assignment because her probationary period had
expired. Lowman forwarded the email to Baker, and expressed
her opinion that Orozco-Garrett did not meet the terms of her
probationary period. Lowman said it had been difficult to work
as Orozco-Garrett’s supervisor because she came to meetings
late, wrote hateful emails, and spoke ill of her as a person, not
just as a supervisor. She asked Baker to advise her on how to
proceed. (R. Exh. AA.)
Salganek forwarded Carpenter’s complaint to Baker. He
spoke with Carpenter, Foss, and Briggs in connection with
Carpenter’s complaint. (Tr. 141–142, 149.) On August 27,
Baker sent Orozco-Garrett an email about Carpenter’s com-
plaint. He reiterated Carpenter’s allegations that Orozco-
Garrett cussed in front of children, and stated that Foss reported
she had a similar experience with Orozco-Garrett cussing in
front of children. Baker asked Orozco-Garrett to send any re-
sponse to him by the end of the day on August 28. (GC Exh.
21.)
On August 28, Orozco-Garrett responded, expressing at the
outset her belief and incredulity that Baker and Salganek were
blatantly violating the settlement agreement. She denied that
she cussed in front of children or parents, and asserted that
Baker and Salganek were fabricating the factual allegations.
She requested the names of the parents and students and factual
statements from them regarding what they heard. Orozco-
Garrett then gave examples of other instances where foul lan-
guage was used in front of children but no action was taken.
(GC Exh. 22.) On August 31, Baker emailed Orozco-Garrett
and asked for the names of any witnesses she would like him to
interview in connection with Carpenter’s complaint. He also
expressed that he was unaware that other employees had used
foul language in front of children and asked her to provide in-
formation so he could look into the matter. (GC Exh. 23.) On
August 31, Orozco-Garrett’s husband hand-delivered to
Doniger a letter outlining Orozco-Garrett’s complaints against
the Respondent and asking NDI’s Board of Directors to address
them. (GC Exh. 24; Tr. 525.)
On September 2, Orozco-Garrett sent Baker a letter setting

17 Orozco-Garrett could not recall to whom she sent the text. (Tr.
646.)
NATIONAL DANCE INSTITUTE—NEW MEXICO, INC. 7
forth her view that she could not respond to the shifting allega-
tions against her with regard to her conversation with Carpen-
ter. She gave examples of other employees’ conduct and ex-
pressed her belief she was being treated disparately. With re-
gard to Baker’s request for information regarding employees
who had used profanity in front of children, Orozco-Garrett
gave some examples without referencing names, and informed
him if he was unaware of these incidents it was because he had
divorced himself from everyday teaching responsibilities and
employed managers who conduct themselves far worse than
anything alleged in the complaint against her. She added, “All
details, including name (sic) of offenders, of the above scenario
will be made public should you persist in this claim and it be-
comes necessary to litigate it in federal court.” (GC Exh. 25.)
NDI did not receive complaints from parents or students
about Orozco-Garrett’s language. (Tr. 179.)
On September 3, Doniger responded to Orozco-Garrett’s let-
ter, informing her she would bring her concerns to the Board of
Directors, and notifying her that the Board’s governance com-
mittee was reviewing the employee handbook. (GC Exh. 26.)
G. Revised Employee Conduct Policy
The employee conduct rule was revised on September 3, and
renamed “Expectations for Employee Conduct.” It was incor-
porated into a revised employee handbook. (GC Exh. 37.) The
revised rule states, in relevant part:
Expectations for Employee Conduct
Being insubordinate, threatening, intimidating or disrespectful
to managers, supervisors, coworkers, or any other individual
in the course of conducting business will result in discipline,
up to and including termination.
NDI added the following language at the end of the rule:
Note that all employees have rights under the NLRA to en-
gage in protected concerted activities including discussing
your terms and conditions of employment, wages or benefits
or work conditions. Nothing in this policy is meant to, nor
should it be interpreted to, in any way limit your rights under
any applicable federal, state, or local laws, including your
rights under Section 7 of the National Labor Relations Act,
including but not limited to the right to engage in protected
concerted activities with other employees for the purposes of
their mutual aid and/or protection, or to improve terms and
conditions of employment, such as wages and benefits.
The previous page states:
The National Labor Relations Act (NLRA) gives employees,
among other rights, the right to discuss wages, hours, and oth-
er terms and conditions of employment with fellow employ-
ees, as well as with non-employees. The NLRA also gives
employees the right to argue and debate with each other about
unions, management and their terms and conditions of em-
ployment. None of NDI-New Mexico's rules, regulations or
policies, including but not limited to those in this Handbook,
should be construed as prohibiting such employee discussions
or rights.
(GC Exh. 37, pp. 9–10.)
H. The Charging Party’s Termination
Baker prepared the summary of his investigation into Car-
penter’s complaint about Orozco-Garrett on September 3. Af-
ter speaking with Carpenter, Baker concluded that Orozco-
Garret’s comments “were rude and intended to belittle and
humiliate Emily and were motivated by your personal animosi-
ty toward her [Lowman] rather than any attempt to discuss your
working conditions.” He determined her conduct was insubor-
dinate and in violation of NDI’s standards of professional con-
duct, which state:
NDI New Mexico requires all employees to adhere to the
highest standards of conduct in their appearance, behavior,
language and mannerisms when representing NDI New Mex-
ico, whether on or off NDI New Mexico premises. Please
keep in mind that as a representative of NDI New Mexico,
you are inherently a role model for the children and families
we serve.
Baker summarized his interviews with Salganek, Carpenter,
Briggs, and Foss, as well as the emails from Orozco-Garrett.
He considered the earlier complaint involving the EA at Gonza-
les Elementary, and recommended Orozco-Garrett’s termina-
tion. (R. Exh. BB; Tr. 257.) Baker also independently recom-
mended Orozco-Garrett’s termination based on his investiga-
tion into the complaint from Robledo. (R. Exh. A.)
Orozco-Garrett was terminated September 4. Her letter of
termination, signed by Baker, references that she was on proba-
tion for the 2014–2015 school year following the complaints
she was rude to staff at Sweeney Elementary School. The letter
then references the complaint about the visually impaired stu-
dent and the EA, as well as Carpenter’s complaint, detailed
above. The final paragraph states:
You have acted disrespectfully, unprofessionally, and inap-
propriately toward members of the NDI New Mexico com-
munity, including the children we serve. You refuse to accept
constructive criticism directed toward improvement of your
performance or to take responsibility for your behavior. In-
stead, you blame others and are combative rather than cooper-
ative, and have repeatedly shown that you are unwilling to
change. Such conduct is unacceptable and disruptive. There-
fore, I am terminating your employment with NDI New Mex-
ico effective immediately.
The letter concludes by instructing Orozco-Garrett to make
arrangements to turn in her key and any other possessions that
belong to NDI. (GC Exh. 27.) Baker was the decisionmaker.
(Tr. 193.)
On September 8, Orozco-Garrett filed a notice of appeal and
complaint with NDI’s Board of Directors. (GC Exh. 28.) On
September 30, NDI’s attorney responded that because Orozco-
Garrett was not an employee, she was no longer covered by the
employee handbook and the Board would not consider her ap-
peal. (GC Exh. 30.)
III. DECISION AND ANALYSIS
A. Witness Credibility
A credibility determination may rest on various factors, in-
cluding “the context of the witness' testimony, the witness'
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole.” Hills & Dales
General Hospital, 360 NLRB No. 70, slip op at 7 (2014), citing
Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001). In making credi-
bility resolutions, it is well established that the trier of fact may
believe some, but not all, of a witness’s testimony. NLRB v.
Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950).
In evaluating the various different versions of events, I have
fully reviewed the entire record and carefully observed the
demeanor of all the witnesses. I have considered the apparent
interests of the witnesses; the inherent probabilities in light of
other events; corroboration or the lack of it; consistencies or
inconsistencies within the testimony of each witness and be-
tween witnesses with similar apparent interests. See, e.g.,
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Testimo-
ny or other evidence in contradiction to my factual findings has
been carefully considered but discredited. Where there is in-
consistent evidence on a material point, my credibility findings
are incorporated into my legal analysis below.
B. Protected Concerted Activity
Complaint paragraph 4(a) alleges that around March 2015,
Orozco-Garrett engaged in concerted activities with other em-
ployees for the purposes of mutual aid and protection by dis-
cussing the Respondent’s working conditions, including, but
not limited to, criticizing artistic choices made by management
during staff meetings and criticizing management workplace
decisions.
“To be protected under Section 7 of the Act, employee con-
duct must be both ‘concerted’ and engaged in for the purpose of
‘mutual aid or protection.’” Fresh & Easy Neighborhood Mar-
ket, 361 NLRB No. 12, slip op. at 3 (2014). For the reasons set
forth below, I find Orozco-Garrett’s complaints criticizing
management were neither concerted nor protected.
The Board has held that activity is concerted if it is “engaged
in with or on the authority of other employees, and not solely
by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v.
NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. denied 474 U.S.
948 (1985), on remand Meyers Industries (Meyers II), 281
NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Concerted
activity also includes “circumstances where individual employ-
ees seek to initiate or to induce or to prepare for group action”
and where an individual employee brings “truly group com-
plaints to management’s attention.” Meyers II, 281 NLRB at
887. An individual employee’s complaint is concerted if it is a
“logical outgrowth” of the concerns of the group. Every Wom-
an’s Place, 282 NLRB 413 (1986); Mike Yurosek & Son, Inc.,
306 NLRB 1037, 1038 (1992), after remand, 3 10 NLRB 831
(1993), enfd. 53 F.3d 261 (9th Cir. 1995).
I find Orozco-Garret’s complaints criticizing management’s
artistic choices were not concerted. Orozco-Garrett failed to
show how her suggestions about the artistic direction of the
year-end show, a highly subjective topic, would benefit her
fellow employees.18 The General Counsel argues, “It is axio-
matic that a dance instructor’s criticism of management’s artis-
tic choices for the end-of-year performances during a monthly
preparation and choreography meeting of instructors and staff
held for the purpose of preparing for those performances, are
discussions of working conditions of all instructors and staff
preparing for the performances.” (GC Br. p. 25.) Merely rais-
ing suggestions in a group meeting does not prove that Orozco-
Garrett’s criticisms or suggestions about management’s artistic
choices were shared by other employees, however, or that other
employees would see her suggested changes as benefitting
them in any way.19
Aside from Orozco-Garrett’s suggested changes to the year-
end show, her other complaint involving management stems
from Lowman’s kitchen sink email. The General Counsel has
not met its burden to show Orozco-Garrett’s belittling of Low-
man for her characterization of the filthiness of the kitchen sink
was concerted activity. Not a single witness was called to testi-
fy that they took umbrage with Lowman’s email. Indeed, the
evidence shows that the employees with whom Orozco-Garrett
ostensibly shared her disdain for Lowman’s email did not share
her viewpoint, and did not want to discuss the matter with her.20
Finally, there is no evidence that Orozco-Garrett’s sugges-
tions about the year-end performance or her comments about
Lowman were geared toward group action.
Based on the foregoing, I find the General Counsel has failed
to adduce evidence sufficient to establish Orozco-Garrett’s
complaints were concerted.
Even assuming Orozco-Garrett engaged in concerted activi-
ty, I find her comments were attenuated from wages, hours and
other working conditions, and were therefore not protected. To
be protected under the Act, the activity must relate to Section 7
rights. [“S]ome concerted activity bears a less immediate rela-
tionship to employees’ interests as employees than other such
activity,” and “at some point the relationship becomes so atten-
uated that an activity cannot fairly be deemed to come within
the ‘mutual aid or protection’ clause.” Eastex, Inc. v. NLRB,
437 U.S. 556, 567–568 (1978). Simply put, it is difficult to see
how Orozco’s complaints were aimed at improving “the inter-
ests of employees qua employees.” G & W Electric Specialty
Co., 154 NLRB 1136, 1137 (1965).
The complaints at issue here largely concern Orozco-
Garrett’s impression that the year-end show did not address the
needs and desires of the Hispanic community NDI serves. She

18 In his brief, the General Counsel also asserts that Orozco-Garrett
made suggestions “to rectify the communication problem that Spanish-
speaking families have with Respondent.” This was not alleged in the
complaint, other than in a catchall manner. Counsel for the General
Counsel elicited no testimony about this at the hearing, and the evi-
dence both of any such communication problem and the nature and
timing of Orozco-Garrett’s attempts to rectify it is insufficient to con-
sider the matter to have been fully litigated.
19 This is true for all of her artistic suggestions. Indeed, the sugges-
tion that her students be given more stage time would logically seem to
benefit her at the expense of her coworkers.
20 I note this was not a complaint to management or to an outside
source, and it was only brought to management’s attention because
Carpenter reported it.
NATIONAL DANCE INSTITUTE—NEW MEXICO, INC. 9
was acting in the interest of her constituents which, while admi-
rable, is not protected activity under the Act. I find this case
very similar to Waters of Orchard Park, 341 NLRB 642
(2004), where two nursing home healthcare workers expressed
concerns about the quality of patient care. The Board found
they were not engaged in protected activity because their com-
plaints “were concerned about the quality of the care and wel-
fare of the residents, not their own working conditions.” The
complaints in both this case and Waters of Orchard Park con-
cerned effects on customers or constituents, not the conditions
under which work was performed.
In addition, classroom instruction culminating in the year-
end show is, for all intents and purposes, NDI’s “product.” As
stated by Member Meisburg in his concurring opinion in Wa-
ters of Orchard Park, “Although employee interest in that
product is desirable, it is not thereby converted into a working
condition. Factory workers, too, may manifest a strong interest
in the goods they produce, but the nature of those goods is not a
condition of employment . . .” Id. at 645–646. Here, Orozco-
Garrett’s suggestions about the artistic direction of the program
were focused on the quality of NDI’s product. “In general,
‘employee efforts to affect the ultimate direction and manageri-
al policies of the business are beyond the scope’ of Section 7.”
Riverbay Corp., 341 NLRB 255, 257 (2004) (quoting Lutheran
Soc. Services of Minnesota, 250 NLRB 35, 41 (1980)). The
quality of the “product” is among these managerial prerogatives
that are “not encompassed by the ‘mutual aid or protection’
clause.” 250 NLRB at 42.
The General Counsel cites to Enterprise Products, 264
NLRB 946, 948 (1982), for the proposition that, “It is settled
that ‘when the exercise of a function of management affects
conditions of employment, the employees have a right to pro-
test the particular action taken.’” (quoting Hagopian & Sons,
Inc. v. NLRB, 395 F.2d 947, 951 (6th Cir. 1968). (GC Br. p.
25.) The protested management action in the cited portion of
Enterprise Products, however, was suspension of a wage in-
crease, a matter squarely within Section 7’s purview.
With regard to the complaints stemming from Lowman’s
email, I note that Orozco-Garrett did not take issue with Low-
man’s request for employees to keep the sink clean. Instead,
she derisively expressed her surprise that the kitchen sink was
the dirtiest thing Lowman had ever seen. These expressions
were not protests or complaints about working conditions, but
were instead personal jabs at Lowman for her characterization
of the sink. See Lutheran Social Services, supra.
In analyzing another complaint allegation, i.e., whether
Salganek’s July 31 email violated the Act, the General Counsel
argues that Orozco-Garrett’s comments about Lowman’s kitch-
en sink email were protected based on Board precedent. The
General Counsel first cites to Millcraft Furniture Co., 282
NLRB 593, 595 (1987). That case, however, involved conduct
in connection with a concerted decision among employees re-
garding a work stoppage, and is therefore not on point. The
General Counsel next points to Fair Mercantile Co., 271 NLRB
1159, 1162–1163 (1984), where two employees together pre-
sented their complaints about their office manager’s manner of
assigning work and alleged favoritism to upper management,
and is likewise not on point. Finally, the General Counsel
points to Calvin D. Johnson Nursing Home, 261 NLRB 289,
289 fn. 2 (1982). There, the Board noted that complaints about
how employees are treated by their supervisors are protected.
As noted directly above, Orozco-Garrett did not complain that
Lowman was unfairly requiring employees to keep the kitchen
sink clean, but she instead mocked Lowman’s description of
the sink. Her words “had no substantive content or value that
could have assisted” in furthering a protected cause. See Media
General Operations, Inc. v. NLRB, 394 F.3d 207, 212 (4th Cir.
2005).
Based on the foregoing, I find the General Counsel failed to
establish Orozco-Garrett engaged in activity protected by Sec-
tion 7, as alleged in complaint paragraph 4(a).
C. The Charging Party’s Fall Class Schedule and Termination
Paragraph 4(d) and alleges that around August 2015, the Re-
spondent failed to assign Orozco-Garrett classes for the Re-
spondent’s Fall Program. Paragraph 4(e) alleges that on Sep-
tember 4, 2015, the Respondent discharged Orozco-Garrett.
Both allegations, through paragraphs 4(f), (g), and (h), assert
that the actions were unlawful retaliation for protected concert-
ed activity and for filing previous charges, and were based on
application of overly-broad rules. Because the allegations in
paragraphs 4(d) and (e) largely rest on of the same facts, they
are analyzed together.
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection . . . .”
The basic test for a violation of Section 8(a)(1) is whether
under all the circumstances the employer's conduct reasonably
tended to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury,
314 NLRB 470, 472, (1994); Sunnyside Home Care Project,
308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959). Further, “It is well settled that the
test of interference, restraint, and coercion under Section
8(a)(1) of the Act does not turn on the employer’s motive or on
whether the coercion succeeded or failed.” American. Tissue
Corp., 336 NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool
Works, 153 F.2d 811, 814 (7th Cir. 1946)).
1. Previous charges—Section 8(a)(4) and (1)
Under Section 8(a)(4), it is unlawful for an employer “to dis-
charge or otherwise discriminate against an employee because
he has filed charges or given testimony under this Act.” In
analyzing this allegation, I follow the procedure set forth by the
Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). See American Gardens Management Co., 338 NLRB
644 (2002) (Board applies Wright Line to allegations under
Section 8(a)(4)). To prove a violation under Wright Line, the
General Counsel must make an initial showing “sufficient to
support the inference that protected conduct was a ‘motivating
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
factor’ in the employer's decision.” 251 NLRB at 1089. If this
is accomplished, the burden shifts to the employer “to demon-
strate that the same action would have taken place even in the
absence of the protected conduct.” Id.
Unlawful employer motivation may be established by cir-
cumstantial evidence, including, among other things: (1) the
timing of the employer’s adverse action in relationship to the
employee’s protected activity; (2) the presence of other unfair
labor practices; (3) statements and actions showing the employ-
er’s general and specific animus; (4) the disparate treatment of
the discriminatees; (5) departure from past practice; and (6)
evidence that an employer’s proffered explanation for the ad-
verse action is a pretext. See Golden Day Schools v. NLRB,
644 F.2d 834, 838 (9th Cir. 1981); NLRB v. Rain-Ware, Inc.,
732 F.2d 1349, 1354 (7th Cir. 1984) (timing); Mid-Mountain
Foods, Inc., 332 NLRB 251, 260 (2000), enfd. mem. 169
LRRM 2448 (4th Cir. 2001); Richardson Bros. South, 312
NLRB 534 (1993) (other unfair labor practices); NLRB v.
Vemco, Inc., 989 F.2d 1468, 1473–1474 (6th Cir. 1993); Affili-
ated Foods, Inc., 328 NLRB 1107 (1999) (statements showing
animus); Naomi Knitting Plant, 328 NLRB 1279, 1283
(1999)(disparate treatment); JAMCO, 294 NLRB 896, 905
(1989), affd. mem. 927 F.2d 614 (11th Cir. 1991), cert. denied
502 U.S. 814 (1991) (departure from past practice); Wright
Line, 251 NLRB at 1089; Roadway Express, 327 NLRB 25, 26
(1998) (disparate treatment).
The lack of meaningful investigation into the incident may
be further evidence of unlawful motivation. “The failure to
conduct a meaningful investigation and to give the employee
who is the subject of the investigation an opportunity to explain
are [likewise] clear indicia of discriminatory intent.” See New
Orleans Cold Storage & Warehouse Co., 326 NLRB 1471,
1477 (1998), enfd. 201 F.3d 592 (5th Cir.2000). Another indi-
cator of unlawful motivation is shifting explanations for a per-
sonnel action. See City Stationery, Inc., 340 NLRB 523, 524
(2003) (nondiscriminatory reasons for discharge offered at the
hearing were found to be pretextual where different from those
set forth in the discharge letters); GATX Logistics, Inc., 323
NLRB 328, 335 (1997) (“Where . . . an employer provides
inconsistent or shifting reasons for its actions, a reasonable
inference can be drawn that the reasons proffered are mere
pretexts designed to mask an unlawful motive.”).
It is undisputed that Orozco-Garrett filed charges with the
Board in Case 28–CA–136974, about which the Respondent
knew. The timing of the Respondent’s decisions to delay
scheduling Orozco-Garrett for classes and terminating her oc-
curred shortly after the complaint generated by Orozco-
Garrett’s previous charges was settled.
The General Counsel points to disparate treatment, noting
that St. Clair was treated more favorably even though she alleg-
edly committed the same infraction.21 With regard to the Re-
spondent’s decision to withhold putting them on the schedule
for fall classes pending investigation into the complaints
against them, St. Clair and Orozco-Garrett were treated the

21 Though these arguments were made in the portion of the General
Counsel’s brief regarding protected concerted activity, they are appli-
cable to the allegation regarding previous charges.
same. With regard to the termination, Orozco-Garrett was ter-
minated and St. Clair was not, and thus they were treated dif-
ferently.
The General Counsel further asserts the “Respondent reacted
to Orozco-Garrett’s concerns with hostility over her disagree-
ment with Respondent’s artistic choice by opting to “keep the
script as is.” (GC Br. p. 4.) It is hard to comprehend how the
Respondent’s decision not to take Orozco-Garrett’s advice
regarding choreography shows hostility for filing previous
charges.
As evidence of pretext, the General Counsel contends that
the fact that Orozco-Garrett taught during the summer shows
that the Respondent knew the allegations against her with re-
gard to grabbing Robledo were false. Baker explained this,
however, stating that when the decision to schedule her for the
summer was made, he did not have enough information to un-
derstand the allegations against her, and had thought Orozco-
Garrett might provide an explanation if she met with him. (Tr.
154.) Given the wealth of evidence regarding the Robledo
incident, discussed above in the statement of facts, and the
Respondent’s repeated attempts to meet with Orozco-Garrett
about it, any inference that the Respondent knew it did not
occur lacks support.
The General Counsel also asserts that the Respondent’s fail-
ure to conduct a meaningful investigation shows the Respond-
ent’s discriminatory intent. I disagree because the record is
clear that Baker repeatedly tried to meet with Orozco-Garrett to
discuss the Robledo incident and Orozco-Garrett repeatedly
thwarted his attempts to do so. The evidence fails to show that
the Respondent sought to shape or distort the investigation, or
that there was not genuine fact gathering.22 The same holds
true for the Carpenter complaint. Salganek asked to meet with
Orozco-Garrett, who in turn responded by telling Salganek she
had violated the settlement agreement and she did not under-
stand the scope of protected activity. Despite Salganek asking
Orozco-Garrett to provide times when she could meet, Orozco-
Garrett did not respond with any suggested meeting times.
In its analysis of whether Salganek’s July 31 email to Oroz-
co-Garrett constituted promulgation of an overly-broad rule, the
General Counsel asserts that the Respondent provided shifting
explanations for Orozco-Garrett’s termination based on Car-
penter’s complaint. The evidence does not support this, how-
ever. While I agree that initially Salganek informed Orozco-
Garrett that Carpenter had complained to her about Orozco-
Garrett’s comments mocking Lowman, it is clear that upon
investigating the matter, Carpenter also complained about
Orozco-Garrett’s language in front of parents and students.
There was no action taken against Orozco-Garrett until she was
informed of these allegations and permitted an opportunity to
respond.
Based on the foregoing, I find the General Counsel has failed
to meet the initial burden to prove that the Respondent’s deci-
sion to hold off on scheduling Orozco-Garrett for fall classes

22 In this regard, I credit Baker’s undisputed testimony that he spoke
to the individuals enumerated in the statement of facts and held the
belief that the incident occurred as reported to him. Baker’s testimony
was consistent and he did not strike me as disingenuous.
NATIONAL DANCE INSTITUTE—NEW MEXICO, INC. 11
violated Section 8(a)(4) and (1). I find, however, based on the
evidence of timing and the more favorable treatment St. Clair
received for committing a similar infraction, the General Coun-
sel has met his initial burden with regard to Orozco-Garrett’s
termination.
To rebut the inference that Orozco-Garret’s termination was
motivated by retaliation for her previously-filed charges, the
Respondent must prove, by preponderant evidence, that it
would have terminated her even had she not filed charges. For
the reasons that follow, I find this burden has been met.
The evidence shows that, in the wake of Orozco-Garrett’s
probation for her conduct toward the staff at Sweeney, the Re-
spondent was faced with similar complaints about her behavior.
With regard to the grabbing incident at the year-end perfor-
mance, the evidence is clear that Salganek received a report that
Orozco-Garrett grabbed Robledo and bruised her. The General
Counsel points out that the Respondent failed to call Robledo
as a witness. Both the Charging Party and the Respondent as-
sert that Robledo would support their respective versions of
events, however, so I draw no conclusions from the failure of
any party to subpoena her testimony. Moreover, any argument
that the Respondent is required to prove the incident actually
occurred as reported to Salganek and Montoya misapprehends
the Respondent’s burden. See Fresno Bee, 337 NLRB 1161,
1182 (2002). The information Baker gathered, which included
speaking with several individuals and the written responses
from Orozco-Garrett, was sufficient for the Respondent to form
a good-faith belief that the incident between Orozco-Garrett
and Robledo occurred as reported to Salganek and Montoya.23
The General Counsel notes that Orozco-Garrett had an injury
to her left arm and was much smaller than Robledo, and asserts
this should lead to an inference that the grabbing incident could
not have occurred. Had the allegations been that Robledo’s
bruise was the result of Orozco-Garrett somehow overpowering
her by force using both of her arms, this argument would be
more compelling. As it stands, however, an injury to one of
Orozco-Garrett’s arms and the respective sizes of Robledo and
Orozco-Garrett do not suggest that the Respondent should have
believed Orozco-Garrett’s denial that she grabbed Robledo, or
her claim that she was physically incapable of doing so.
Turning to the Carpenter complaints, I fully credit Carpen-
ter’s testimony regarding what occurred and what she reported.
She testified in a very straightforward manner, and it was clear
to me she reported the conduct to management because it both-
ered her, not because she was somehow set up as a pawn for the
Respondent. Where Carpenter’s testimony differs from Oroz-

23 I credit the testimony of Montoya regarding her description of
what was reported to her at the wrap-up meeting at Gonzales Elemen-
tary of her documentation of it. (Tr. 672–675.) Her testimony was
open and appeared to me to be an honest account of what had been a
surprising and thus memorable event. It is also corroborated by
Salganek’s account of what Robledo reported to her. I find the Re-
spondent has established the minutes Montoya took at the wrap-up
meeting (R Exh. M) constitute a record of a regularly-conducted busi-
ness activity under Federal Rule of Evidence 803(6). Even if they are
considered hearsay, however, they are corroborated by reliable evi-
dence which I have credited herein. See RC Aluminum Industries, Inc.,
343 NLRB 939, 940 (2004).
co-Garrett’s, I credit Carpenter. In addition to her demeanor,
Carpenter’s testimony is worthy of belief because she has noth-
ing to gain or lose by being honest. There is no reliable evi-
dence that she was coerced in her testimony or that she had
incentive to embellish it. I find the Respondent believed Car-
penter’s complaint, and legitimately considered it as grounds
for termination. See Good Samaritan Hospital, 265 NLRB
618, 627 (1982).
With regard to the different treatment accorded to St. Clair, I
find the Respondent has established there were meaningful
distinctions between St. Clair and Orozco-Garrett justifying
different responses. Most significantly, the only complaint
against St. Clair concerned her contact with Lussiez at the year-
end performance. Orozco-Garret’s discipline, by contrast, was
evaluated based on the complaints from both Robledo and Car-
penter. Moreover, Orozco-Garrett had previously been placed
on probation for her conduct at Sweeney. In short, the com-
plaints regarding Orozco-Garrett demonstrated a pattern of
behavior inconsistent with NDI’s mission and values that had
persisted despite efforts to correct it.324
Based on the foregoing, I find the Respondent has met its
burden to prove that it would have terminated Orozco-Garrett’s
employment even had she not filed previous charges.
2. Protected activity—Section 8(a)(1)
Because I have found that Orozco-Garrett did not engage in
protected concerted activity, I find the allegations resting on
this theory fail and recommend their dismissal. In the event a
reviewing authority disagrees with me, however, I incorporate
my analysis above, and find the Respondent would have termi-
nated Orozco-Garrett’s employment even had she not engaged
in protected concerted activity.
The General Counsel asserts that the record contains sub-
stantial evidence of animus toward Orozco-Garrett based on her
protected concerted activity. (GC Br. p. 26.) First the General
Counsel points to Salganek’s July 31, 2015 email to Orozco-
Garrett, asserted that it prohibited employees from discussing
work issues with coworkers, and from protesting management’s
decisions and threatened employees if they violated the defunct
standards of professional conduct policy. (R. Exh. U.) While
the email references a portion of the rescinded standards of
professional conduct policy, it does not instruct Orozco-Garrett
to refrain from discussing work issues or protesting manage-
ment’s decisions. The email does reference the policy and
concludes with Salganek stating that she and Baker would dis-
cuss possible discipline based on Orozco-Garrett’s comments
about Lowman and her defiant and insubordinate response to
Salganek’s July 13 request to meet to discuss Carpenter’s com-
plaint. I find the July 31 letter was not borne out of animus, but
instead was part of the Respondent’s attempt to address the
complaint from Carpenter about Orozco-Garrett’s conduct, and
it was an appropriate response to Orozco-Garrett’s July 13
email.

24 This pattern was present regardless of whether or not Orozco-
Garrett’s probationary period had expired. I also note that Wolfe pro-
vided unrefuted testimony regarding other employees who were disci-
plined and/or terminated for conduct similar to Orozco-Garrett’s. (Tr.
699–703.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
In any event, assuming the July 31, 2015 email is evidence
of animus, for the reasons set forth in my analysis above, the
Respondent has proved it would have terminated Orozco-
Garrett based on the complaints it received about her and what
was gleaned from the ensuing investigations.
3. Reliance on overly broad rules—Section 8(a)(1)
The General Counsel asserts that Orozco-Garrett was termi-
nated because she violated Salganek’s July 31 email and the
overly-broad employee handbook rule.
The Board has long held that discipline for violating an un-
lawfully overbroad rule may violate the Act. Double Eagle
Hotel & Casino, 341 NLRB 112, 112 fn. 3 (2004), enfd. 414
F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006).
The Board recently clarified that such discipline is unlawful
when an employee violates the rule by “(1) engaging in pro-
tected conduct or (2) engaging in conduct that otherwise impli-
cates the concerns underlying Section 7 of the Act.” The Con-
tinental Group, Inc., 357 NLRB 409, 412 (2011).
As discussed below, I find the email and the handbook rule
are not overly-broad, and on that basis this allegation fails.
Moreover, as discussed at length herein, I find Orozco-Garrett
did not violate either rule by engaging in conduct protected by
Section 7 or implicating its concerns.
Because I find Orozco-Garrett’s termination was legitimately
motivated and not premised on violating unlawfully overbroad
rules, I recommend dismissal of complaint paragraphs 4(d) and
(e).
D. Alleged Unlawful Rules
1. Expectations for Employee Conduct
Complaint paragraph 4(c) alleges that since September 3,
2015, the Respondent has maintained and enforced the follow-
ing overly-broad and discriminatory rule in its Employee
Handbook:
Expectations for Employee Conduct
Being insubordinate, threatening, intimidating or disre-
spectful to managers, supervisors, coworkers, or any other
individual in the course of conducting business will result
in discipline, up to and including termination.
The General Counsel has the burden to prove that a rule or
policy violates the Act. In determining whether a work rule
violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of
their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999); Hills & Dales
General Hospital, 360 NLRB No. 70, slip op. at 5 (2014).
Under the test enunciated in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), if the rule explicitly restricts
Section 7 rights, it is unlawful. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employ-
ees would reasonably construe the language to prohibit Section
7 activity; (2) the rule was promulgated in response to union or
other protected activity; or (3) the rule has been applied to re-
strict the exercise of Section 7 rights.” Id. at 647.
A rule does not violate the Act if a reasonable employee
merely could conceivably read it as barring Section 7 activity.
Rather, the inquiry is whether a reasonable employee would
read the rule as prohibiting Section 7 activity. Id. The question
of whether a rule or policy is on its face a violation of the Act
requires a balancing between an employer’s right to implement
certain legitimate rules of conduct in order to maintain a level
of productivity and discipline at work, with the right of em-
ployees to engage in Section 7 activity. Firestone Tire & Rub-
ber, 238 NLRB 1323, 1324 (1978).
The Board must give the rule under consideration a reasona-
ble reading and ambiguities are construed against its promulga-
tor. Lutheran Heritage, supra at 647; Lafayette Park Hotel,
supra at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–
470 (D.C. Cir. 2007). Moreover, the Board must “refrain from
reading particular phrases in isolation, and it must not presume
improper interference with employee rights.” Lutheran Herit-
age, supra at 646.
The Expectations for Employee Conduct rule does not ex-
plicitly restrict Section 7 rights, nor does the General Counsel
assert it was promulgated in response to protected activity or
has been applied to restrict the exercise of Section 7 activity.25
The General Counsel asserts employees would construe to rule
as restricting their Section 7 activity.26 For the following rea-
sons, I disagree.
I find the Expectation for Employee conduct rule is not over-
ly-broad when read in context. The rule is limited to conduct
“in the course of conducting business,” which limits the prohi-
bition to conduct that would interfere with the Respondent’s
legitimate business concerns. See Copper River of Boiling
Springs, LLC, 360 NLRB No. 60, slip op. at 1 (2014). The rule
also contains clear and conspicuously placed limiting language.
The last paragraph of the rule, which appears on the same page
as the disputed provision, states:
Note that all employees have rights under the NLRA to en-
gage in protected concerted activities including discussing
your terms and conditions of employment, wages or benefits
or work conditions. Nothing in this policy is meant to, nor
should it be interpreted to, in any way limit your rights under
any applicable federal, state, or local laws, including your
rights under Section 7 of the National Labor Relations Act,
including but not limited to the right to engage in protected
concerted activities with other employees for the purposes of
their mutual aid and/or protection, or to improve terms and
conditions of employment, such as wages and benefits.
(GC Exh. 37, p. 10.) The previous page also contains a state-
ment describing employees’ rights under the Act, including the
right to argue and debate about working conditions, and explic-
itly states that no rule should be construed as prohibiting such
discussions or rights. (GC Exh. 37 p. 9.) This language spells
out that discussions and complaints about working conditions,
including the right to argue and debate about working condi-

25 Though the revised rule was promulgated in an effort to settle
charges that the previous rule was overly-broad, obviously this is not
the type of unlawful promulgation in response to protected activity the
Board seeks to circumscribe. To find otherwise would punish employ-
er attempts to settle complaints.
26 The General Counsel primarily relies on Memorandum GC 15–05,
which is not binding precedent.
NATIONAL DANCE INSTITUTE—NEW MEXICO, INC. 13
tions, are not prohibited by the rule. Moreover, limiting lan-
guage is written in a manner that does not require legal skill or
training to understand.
It is undisputed that NDI’s employees, in the course of con-
ducting NDI’s business of providing dance instruction to a
vulnerable population, are expected to conduct themselves as
role models for the children they serve. Given the context of
Expectations for Employee Conduct rule, read together with the
limiting language clearly excepting protected Section 7 activity,
both within the rule itself and on the previous page, I find a
reasonable employee would not construe the rule as restricting
his or her rights under the Act. Accordingly, I recommend
dismissal of complaint paragraph 4(c).
2. Salganek’s July 31 email
Complaint paragraph 4(b)(1) alleges that, by Salganek’s July
31, 2015 email, the Respondent promulgated an overly broad
and discriminatory rule that prohibited employees from discuss-
ing work issues with fellow employees and from protesting
workplace actions arising from the Respondent’s management.
The framework set forth directly above with regard to the
Expectations for Employee Conduct applies to this allegation.
The General Counsel’s argument in support of this allegation
is less than clear. It starts by mischaracterizing the July 31
email, stating:
On July 31, Respondent e-mailed Orozco-Garrett it consid-
ered her conduct in communicating disagreement with and
protesting Director Lowman’s decision to send a group e-mail
regarding the dirty cantina sink insubordinate and in violation
of Respondent’s defunct and rescinded Standards of Profes-
sional Conduct.
(GC Br. 21.) Orozco-Garrett did not protest Lowman’s deci-
sion to send the email, however, but rather mocked Lowman’s
description of the sink, as set forth fully above. Salganek’s July
31 email took issue with the nature of Orozco-Garret’s com-
ments to Carpenter (about which Carpenter complained) that
Salganek determined were based on personal animosity rather
than an attempt to discuss working conditions.27
The General Counsel next argues that Orozco-Garret’s
comments about Lowman’s kitchen sink email were protected,
and argues there was unlawful motivation behind the email. As
detailed above, I have found the comments were not concerted
or protected, and in any event the protected nature of the com-
ments as well as evidence of animus do not play into the analy-
sis of whether or not a rule violates Section 8(a)(1).
Next, the General Counsel alleges that actions that distin-
guish among employees because they engage in protected con-
certed activity are inherently destructive of employee rights.
More specifically, the General Counsel argues:
Respondent’s promulgation of the overly broad and discrimi-
natory rule in its July 31 e-mail to Orozco-Garrett and its re-
sulting second investigation of Orozco-Orozco-Garrett, in re-
gard to her violating that rule by the manner in which she
communicated disagreement with and protested Director

27 Salganek’s assessment in this regard is consistent with the great
weight of the evidence.
Lowman’s decision to send a group e-mail regarding the dirty
cantina sink, is inherently destructive of Section 7 rights in
that it can be inferred that Respondent’s conduct was motivat-
ed by the desire to discourage such disagreement and protest.
One is held to intend the foreseeable consequences of one’s
actions.
(GC Br. p. 23.) Again, this is not the analytical framework to
assess whether a rule is overly-broad. Moreover, the authority
the General Counsel relies upon is misplaced. The General
Counsel cites to Contractor Servs., Inc., 324 NLRB 1254, 1258
(1977), which involved an employer who attempted to require
union applicants to sign a form waiving their rights to engage in
protection union activity as a condition of being hired.28 This is
meaningfully distinguishable from the allegedly unlawful rule
here on many fronts.
The portion of the Standards for Professional Conduct cited
in the July 31 letter states:
NDI New Mexico requires all employees to adhere to the
highest standards of conduct in their appearance, behavior,
language and mannerisms when representing NDI New Mex-
ico, whether on or off NDI New Mexico premises. Please
keep in mind that as a representative of NDI New Mexico,
you are inherently a role model for the children and families
we serve.29
(R. Exh. U.)30 This language does not on its face restrict Sec-
tion 7 Activity. Because I have found that Orozco-Garrett’s
comments about Lowman’s email were not protected concerted
activity, I find any rule contained in the email was not promul-
gated in response to protected activity. On this same reasoning,
I find it was not applied to restrict Section 7 activity.
I further find that a reasonable reading of the cited language
would not lead NDI employees to believe their Section 7 activi-
ty was restricted. The plain intent is to ensure NDI employees
adhere to its mission and values in the presence of the constitu-
ents it serves, which includes NDI employees acting as role
models to students.31 The nature of the Respondent’s business
and mission and its training of employees in this regard is ex-
tremely important when reasonably interpreting this email.32 In
a different context, as applied to employees not charged with
being role models to underprivileged children, the rule may be

28 The General Counsel also cites to Radio Officers v. NLRB, 347
U.S. 17, 44–45 (1954), which involves discussion of intent in analyzing
allegations under Sec.8(a)(3).
29 This rule was voluntarily rescinded and revised pursuant to the
settlement agreement.
30 The General Counsel asserts that the promulgation of this rule was
a prior unfair labor practice. No such finding has been made, however,
as the rule was voluntarily rescinded pursuant to a settlement agree-
ment.
31 Orozco-Garrett does not dispute that instructors are expected to
model NDI’s principles. (Tr. 611.)
32 As stated by Judge Ries in Lutheran Social Services, 250 NLRB at
43: “In a place of employment where the mission is to repair distressed
young lives, where harmony and accord must certainly be of critically
greater significance than in an ordinary industrial setting, disruption of
that requisite environment by unstinting criticism deserves close con-
sideration.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
considered overly-broad.33 As noted in the statement of facts,
NDI employees are trained extensively on how to conduct
themselves while representing NDI to its constituents and a
reasonable employee would read the language cited in the email
as requiring them to adhere to these legitimate standards. Fire-
stone Tire & Rubber, supra.
Though not entirely clear, the General Counsel also appears
to assert the Respondent promulgated an overly-broad rule by
the portion of the email informing Orozco-Garrett of
Salganek’s belief that Orozco-Garrett’s response to Salganek’s
request to meet with her was insubordinate. Salganek informed
Orozco-Garrett of Carpenter’s complaint on July 13 and re-
quested to meet with her. Orozco-Garrett’s response that same
day is detailed in the statement of facts and discussed above.
The General Counsel has failed to prove how characterization
of Orozco-Garrett’s response, which ignored the request to
meet and essentially told Salganek she was ignorant, as insub-
ordinate, is the promulgation of an overly-broad rule under any
of the Lutheran Heritage criteria.
Based on the foregoing, I recommend dismissal of complaint
paragraph 4(b)(1).
E. Alleged Threats of Reprisal
Complaint paragraph 4(b)(2) alleges the Respondent threat-
ened its employees with unspecified reprisals if they violated
the rule set forth in Salganek’s July 31 email, in violation of
Section 8(a)(1).
In assessing whether a remark constitutes a threat, the appro-
priate test is “whether the remark can reasonably be interpreted
by the employee as a threat.” Smithers Tire, 308 NLRB 72
(1992). The actual intent of the speaker or the effect on the
listener is immaterial. Smithers Tire, 308 NLRB 72 (1992); see
also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir.
1981) (inquiry under Sec. 8(a)(1) is an objective one which
examines whether the employer’s actions would tend to coerce
a reasonable employee). The “threats in question need not be
explicit if the language used by the employer or his representa-
tive can reasonably by construed as threatening.” NLRB v. Ayer
Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The Board
considers the totality of the circumstances in assessing the rea-
sonable tendency of an ambiguous statement or a veiled threat
to coerce. KSM Industries, 336 NLRB 133, 133 (2001).
It is undisputed that Salganek’s email threatened Orozco-

33 I make no specific finding in this regard.
Garrett with discipline for engaging in the kind of behavior that
led to her probation. Specifically, the relevant portion of the
email states:
In September, 2014, you were told to improve your behavior
and were warned that if you repeated improper behavior or if
you ignored or violated any other policies, procedures or di-
rection from your Program Director or senior management,
you would be subject to disciplinary action, up to termination.
(R. Exh. U.) The General Counsel also argues that Salganek’s
statement that she and Baker would discuss possible discipline
based on Orozco-Garrett’s comments about Lowman and her
response to Salganek’s July 13 email constitutes a threat. Cit-
ing again to Fair Mercantile, supra, which I have distinguished
above, the General Counsel asserts that “Orozco-Garrett’s
complaints and sarcastic comments about Director Lowman’s
group e-mail and that Lowman’s statements in that e-mail were
out of touch with reality or pathetic were protected” and argues
that “when an employer threatens employees with discharge if
they concertedly complain about wages, hours, or other terms
and conditions of employment” it violates Section 8(a)(1). (GC
Br. p. 24.)
I find Salganek’s email does not violate Section 8(a)(1) be-
cause it does not threaten with regard to activity protected by
Section 7, as detailed in the above analysis on Orozco-Garrett’s
alleged protected concerted activity. Accordingly, I find the
General Counsel has not met his burden to prove the July 31
email was an unlawful threat, and recommend dismissal of
complaint paragraph 4(b)(2).
CONCLUSIONS OF LAW
The Respondent’s actions of failing to assign classes to Di-
ana Orozco-Garrett and terminating her employment did not
violate Section 8(a)(4) and (1) of the Act.
The Respondent did not promulgate, maintain, or enforce un-
lawful overly-broad work rules.
The Respondent did not unlawfully threaten its employees
with reprisal for engaging in protected Section 7 activity.
Accordingly, based on the foregoing findings of fact and
conclusions of law and the entire record, I issue the following
recommended
ORDER
The complaint is dismissed.
Dated, Washington, D.C. February 10, 2016